We have never before addressed this issue in the context of ORS 811.706.
However, in State v. McMillan, 199 Or App 398, 111 P3d 1136 (2005), we considered
whether there is a state or federal constitutional right to jury findings on the factual issues
involved in a determination of restitution under ORS 137.106(1) (2003), (1) the general
restitution statute. At the relevant time, ORS 137.106(1) provided that, "[w]hen a person
is convicted of a crime * * * that has resulted in pecuniary damages," the district attorney
must investigate and present to the court evidence as to the nature and amount of those
damages. The statute further provided that,

"[i]f the court finds from the evidence presented that a victim suffered
pecuniary damages, in addition to any other sanction it may impose, the
court shall[,] * * * [i]nclude in the judgment a requirement that the
defendant pay the victim restitution in a specific amount that equals the full
amount of the victim's pecuniary damages as determined by the court[.]"

ORS 137.106(1)(a). In McMillan, we rejected the defendant's contention that the Oregon
Constitution, Article I, section 11, guarantees the defendant a jury trial on the issue of the
amount of restitution on a conviction of theft in the first degree, reasoning that the
amount of restitution is not an element of the offense. 199 Or App at 401-02.
Additionally, under the Sixth Amendment of the federal constitution, as interpreted in
Apprendi and Blakely, we reasoned that the facts necessary to impose restitution under
ORS 137.106 are not facts that increase the penalty "beyond the prescribed statutory
maximum," because the statutory maximum includes restitution for the full amount of the
victim's pecuniary damages:

"The statute thus does not permit any finding of the court to result in
a sentence beyond the statutory maximum. Rather, the statute authorizes
the court to require the payment of restitution as part of the judgment of
conviction in an amount 'that equals the full amount of the victim's
pecuniary damages as determined by the court.' ORS 137.106(1)(a). The
statutory maximum is, in other words, the amount of pecuniary damages as
determined by the court, and no more."

McMillan, 199 Or App at 403. Thus, we concluded, the principles announced in
Apprendi and Blakely are not violated when the trial court makes the findings necessary
to determine the amount of the victim's pecuniary damages under ORS 137.106. We
adhered to our holding in McMillan in State v. Travalini, 215 Or App 226, 234, 168 P3d
1159 (2007), rev den, 344 Or 110 (2008), and State v. Mendez, 211 Or App 311, 314, 155
P3d 54, rev den, 343 Or 160 (2007). Further, in Mendez, we held that the applicable
standard of proof for the imposition of restitution is a preponderance of the evidence. 211
Or App at 322-23 n 12.

Of course, ORS 811.706 is different from ORS 137.106. The finding that
the trial court must make in order to impose accident-related restitution under ORS
811.706 is not about the damage caused by the defendant in committing the crime of
conviction--it is about the damage caused by the defendant in the incident that gave rise to
the defendant's duties as a driver under ORS 811.700. However, we conclude that the
rationale of McMillan applies with equal force under ORS 811.706. When a defendant
has been convicted of failing to perform the duties of a driver when property is damaged,
ORS 811.706 authorizes the court to require payment of restitution as a part of the
judgment in an amount "equal to the amount of any damages caused by the person as a
result of the incident that created the duties [of a driver]." ORS 811.706. The statutory
maximum sentence thus encompasses the amount of damages caused by the person as a
result of the incident that gave rise to the violation of the statute, and no more. As we
concluded in McMillan, we conclude that the principles announced in Apprendi and
Blakely are not violated by the trial court making the findings necessary to impose the full
amount of damages as restitution under ORS 811.706.